Death and writing a will are not things I think about on a regular basis. Luckily.
But it amazes me when I read requests for will writing recommendations on parenting forums. Mainly because these requests appear frequently. If you are a parent, well if you are anyone but especially so if you are a parent, you can not afford not to have a will. Also, if you aren’t married but living with a partner, it is really important you document how your partner is to be looked after if you die first because non-blood relatives are completely overlooked by the law.
If you don’t leave a valid will, where your money goes and who looks after your children is determined by law and may be completely contrary to your wishes.
I hope that anyone reading this post who doesn’t have a will sees quite how important it is to write down your wishes, tick this important task off and forget about it. Hopefully for a very long time!!
Guardianship of minors
A parent has automatic parental responsibility for a child if the other parent dies. But if you die with no will and your minor children (under 18 years) are left with no parents, the courts will appoint guardians for them.
The appointed guardian may not be someone you may have wished to look after your children, especially in cases where families are estranged. The courts may opt to nominate guardians from blood relatives, overlooking an unmarried surviving partner who may have co-habited with you and your children for a long period of time.
Nominating guardians doesn’t happen immediately; there may also be a period during which guardianship is being arranged where your children have to be taken in to care.
If you want to ensure your children are looked after by people who YOU want to look after them, and people they are comfortable with and want to live with during this traumatic time, make a will and specify your wishes. We have nominated a second set of guardians in our will in the hopefully unlikely event that both of us and our first set of guardians die together. Protecting my children if the worst were to happen is the biggest priority to me.
If you die without leaving a will
If you die without leaving a will, the law decides who gets what and how much; these are called the rules of intestacy.
Also, if you make a will but it is not legally valid, these rules also decide how the estate will be shared out, not the wishes expressed in the invalid will.
If you die with no living close relatives, your whole estate will belong to the Crown under a law called bona vacantia. £8 million in money and property went to the government last year because people didn’t leave a will – that’s huge!
Rules of intestate succession
Only married or civil partners and some other close relatives can inherit under the rules of intestacy. If you’re not married and not in a civil partnership, your partner is not legally entitled to anything when you die. This can be devastating for unmarried couples who have lived together for a long time; on the death of one partner, the surviving partner could be left with nothing.
Unmarried or single with no children – If you are unmarried or single and childless, your parents will receive your entire estate if they are both living. Otherwise it will be divided among your closest blood relatives and if there are no close blood relatives, the Crown will receive the entire estate. In this scenario, a surviving unmarried partner would get NOTHING.
Unmarried or single with children – If you are unmarried or single with children, then your entire estate will be shared equally by your children. Your surviving unmarried partner will get NOTHING. If any child has died before you, and that child has any children, then his or her share will go to your grandchildren.
Married or in a civil partnership, with no children – Regardless of the value of the estate, it will go to your surviving partner (assuming all assets are jointly owned – see below for property held as joint tenants).
Married with children – If you are married with children, your surviving spouse will receive the personal possessions and the first £250,000, then half of everything else. The other half passes equally to any children (held in trust until they are 18 if they are under-age). If any child has died before you, and that child has any children, then his or her share will go to your grandchildren. This division of your estate applies even if you are separated from your spouse but not yet divorced.
Things to watch out for
Jointly owned property – Any assets that you own jointly with someone will not pass under the intestacy rules; your share will pass to the surviving joint owner. You do need to own the asset as “joint tenants” and not as “tenants in common” for this rule to apply.
Remarriage – As soon as you re-marry, any will in effect on that date will cease to be valid. That is right; marriage automatically revokes a will made previously. Unless you re-write your will, you will be deemed to have died intestate.
Protecting children from an earlier marriage – If your estate is worth less than £250,000, your surviving spouse would receive your entire estate. This leaves them free to leave this money to whoever they wish in their own will; your children from a previous marriage may not feature in their will. In this instance, your children from an earlier marriage could potentially receive nothing. Even if your estate is worth more than £250,000, if it includes a jointly owned family home, this will pass to the new spouse on death (outside of intestacy laws). After the spouse has taken the first £250,000, when the remainder is shared 50/50 with the surviving spouse, there may be little for the surviving children from the earlier marriage.
Making a legally valid will is the best way to protect those you love for the future and ensure that your wishes are met. I will be following up this post shortly with a guide to the easiest and cheapest way to write a legally binding will. Follow me on Facebook, Twitter or sign up to my newsletter to be notified of new posts.